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92 C. Cls. Opinion of the Court 3. On the tickets for admission to the contests there appeared what was designated as the “established price,” which included the State tax, and there was shown separately thereon the Federal tax which was computed on the so-called "established price.” The wording on each ticket, except for the amount, was as follows: Est. price $10.45 (including State tax) Federal tax $1.05--

$11. 50 The Federal tax on all tickets was computed on the “established price” thereof, which, as indicated on the ticket itself, included a State tax.

The purchaser in each instance paid to the plaintiff the total price appearing on the ticket.

4. The tickets were printed under the direction of the Division of State Athletic Commission, Department of State, State of New York, which under authority of law prescribed the color, size, and wording thereon.

5. The total amount of the Federal tax collected on the three above mentioned bouts was duly paid to the defendant.

6. In June 1936 the plaintiff held another boxing contest. In its return of Federal taxes collected on admissions to this contest plaintiff deducted the sum of $7,111.26 from the amount collected, claiming that this amount had been overpaid on the three above-mentioned bouts held in 1935. Subsequently a claim for abatement of this amount was filed, which was rejected by the Commissioner of Internal Revenue on February 17, 1938. Thereafter, this amount was paid to the Collector of Internal Revenue, and on April 18, 1938, plaintiff filed a claim for refund of this amount on the ground that the Federal admission tax on the three bouts set out in finding 2 had been computed on the charge for admission plus the New York State admission tax, which equalled 5 percent of the charge for admission. This claim was rejected by the Commissioner of Internal Revenue on November 14, 1938.

The court decided that the plaintiff was not entitled to re

cover.

WHITAKER, Judge, delivered the opinion of the court:

On June 25, 1935, August 2, 1935, and October 3, 1935, the plaintiff held three boxing bouts. The tickets for each

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Opinion of the Court of these bouts listed the “established price” at certain figures, which included the New York State admission tax. The federal tax was computed on this price, the amount thereof was shown on the ticket and was paid by the purchaser of the ticket, and thereafter was duly remitted by the plaintiff to the defendant. The plaintiff claims that the Federal tax was improperly computed, in that it was computed on the admission price plus the New York State tax, and hence it says that the Federal admission tax has been overpaid. It sues to recover on the theory that it bore the burden of the tax.

The defendant defends on two grounds: (1) that the plaintiff was merely the collector of the tax, and not the taxpayer and, therefore, whether or not the taxes were overpaid, the plaintiff is not entitled to recover; and (2) that the Federal tax was correctly computed anyway.

We think it necessary to consider only the first of these two propositions.

Section 711 of the Revenue Act of 1932 (47 Stat. 169, 271, Chapter 209) amends section 500 (a) of the Revenue Act of 1926 to read in part as follows:

A tax of 1 cent for each 10 cents or fraction thereof of the amount paid for admission to any place, including admission by season ticket or subscription, to be

paid by the person paying for such admission; However the tax may have been computed, it was paid as the law demanded “by the person paying for such admission.” The Federal tax was shown separately on the ticket; for instance, on a $11.50 ticket, the price of admission, including the State tax, was shown to be $10.45, and the Federal tax was shown separately to be $1.05, making the total amount to be paid $11.50. The purchaser of the ticket paid $10.45 for admission and State tax, and $1.05 for the Federal admission tax. This $1.05 was merely collected by the plaintiff, and by it transmitted to the defendant. This being true, it would appear that only the person paying the tax would be entitled to recover it, unless the plaintiff is entitled to recover because it bore the burden of the tax.

92 C. Cls. Opinion of the Court Plaintiff insists that it could not have demanded more than $11.50 for this class of ticket, that it could not increase the price thereof to take care of the excess Federal tax, and, therefore, that it in reality bore the burden of the tax. It says it would not have been practical, for instance, to have charged $11.54 for the ticket in order to take care of the excessive amount of admission tax and that, therefore, it was deprived of 4 cents which it otherwise would have retained if the Federal tax had been correctly computed. Plaintiff, however, admits that in some bouts it did charge odd cents for its tickets, and there is no showing that it was impossible for it to have done so in this instance. It merely elected not to do so in order to save itself the annoyance and delay of being compelled to deal in odd cents. In other words, the proof shows that the plaintiff was not compelled to bear the burden of the tax, but rather that it elected to do so.

But even though the plaintiff had in fact borne the burden of the tax, it nevertheless was not the taxpayer; no taxes were exacted from it by the defendant and there is, therefore, no right given to it under the law to recover. In Lash's Products Co. v. United States, 64 C. Cls. 252, affirmed by the Supreme Court, 278 U. S. 175, a soft drink manufacturer claimed that it had passed on to the purchaser a tax levied on the manufacturer of soft drinks, and, therefore, that the purchaser was in fact the taxpayer. The Supreme Court said:

*** The phrase "passed the tax on” is inaccurate, as obviously the tax is laid and remains on the manufacturer and on him alone. Heckman & Co. v. 1. S. Dawes & Son Co., 12 F. (20) 154. The purchaser does not pay the tax. He pays or may pay the seller more for the goods because of the sellar's obligation, but that

is all. So in the case at bar. Whether or not the plaintiff received less for the admission to the bout than it otherwise would have received had the tax been properly computed, nevertheless, it was the purchaser of the ticket who paid the tax and, therefore, it is only he who has the right to maintain an action to recover. See also the opinion of this court

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Syllabus on motion for a new trial in Bunker Hill Country Club v. United States, 80 C. Cls. 375, 385; certiorari denied, 296 U. S. 583.

It results that plaintiff's petition must be dismissed. It is so ordered.

LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur.

ENOS L. SEEDS AND JOHN DERHAM, JR., INDIVIDUALLY AND TRADING AS SEEDS & DERHAM, v. THE UNITED STATES

[No. 44279. Decided October 7, 1940)*

On the Proofs Government contract; plaintiffs bound by accepted modification of

contract.-Where plaintiffs, contractors engaged in the building of alterations to the Emsworth Dam on the Ohio River, were delayed in the performance of the original contract by the discovery of defects in the old dam which was to be used as the downstream arm of the cofferdam, and where upon discovery of this condition a change order was issued, to which plaintiffs agreed, modifying the original contract and providing for additional compensation for the extra work occasioned by such conditions, it is held that plaintiffs are bound by the contract as modified and are not entitled to recover. Karno

Smith Co. v. United States, 84 C. Cls. 110, distinguished. Same; decision of contracting officer final.-Where delay in the work

on the lock wall was not the fault of the plaintiffs and was not within contemplation of the contract, and where there was no dispute as to the extent of the delay nor as to the equipment made idle, the sole difference being as to the rental value of the equipment, it is held that under the terms of the contract the decision of the contracting officer as to the extent of

the damages is final. Same.--Where plaintiffs presented to the contracting officer a claim

for additional compensation because of the increased costs to which plaintiffs had been put by reason of the alleged refusal of the contracting officer to permit them to remove certain portions of the lock wall by blasting, and where upon presentation of this claim to the contracting officer it was held by the contracting officer that the procedure used by the contractor was not required by the Government but was mutually agreed upon by the contractors and resident engineer, and

Certiorari denied.

92 C. Cls. Reporter's Statement of the Case where said finding by the contracting officer was on appeal to the head of the department affirmed, it is held that plain

tiffs are not entitled to recover. Same.—Where in the flood of March 17, 1936, some of the sheet

piling installed by the plaintiffs under the change order was damaged and had to be removed, repaired, and reinstalled, it is held that the work done under the change order was gov. erned by the provisions of the original contract as modified by the change order, which provided for the additional work, and

plaintiff is not entitled to recover. Same; labor from relief rolls.—Where, under the terms of the con

tract, labor was taken from the relief rolls, and where the proof shows that the labor so obtained was average relief-roll labor, and there is no showing that any rules and regulations were enforced which the contractors did not know about in advance or that the labor was of a quality below that the contractors had a right to expect, it is held that the plaintiffs are not entitled to recover under the provisions of the Act of July 23, 1937.

The Reporter's statement of the case :

Mr. Walter Biddle Saul for the plaintiff. Mr. Samuel E. Ewing, Jr., and Saul, Ewing, Remick & Saul were on the brief.

Mr. William A. Stern Il, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

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The plaintiffs entered into a contract with the defendant to construct a dam on the Ohio River adjacent to an existing dam known as the Emsworth Lock and Dam. They sue to recover on several grounds: (1) because the defendant breached its implied warranty that the existing dam was suitable for use as the downstream arm of the four cofferdams to be constructed, and that as a result they suffered loss on account of the resultant delay in the performance of their contract; (2) because the defendant changed its plans and specifications so as to increase the height of the dam to be constructed, resulting in a delay in the performance of the original contract, causing a loss to them; (3) because they were delayed by the defendant in the doing of the work specified on the lock wall; (4) because the defendant refused to permit them to use dynamite in removing the lock wall and required them to adopt a more expensive method; (5) because

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